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FDIC Federal Register Citations
Sent: Tuesday, November 29, 2005 12:16 PM
To: Comments
Cc:;; Nancy Schamu
Subject: FDIC National Historic Preservation Act policy

Robert E. Feldman, Executive Secretary,
Attention: Comments/Legal ESS
Federal Deposit Insurance Corporation
550 17th Street, NW., Washington, DC 20429.
Dear Mr. Feldman:
I am writing to comment on FDIC's proposed revised policy regarding compliance with Section 106 of the National Historic Preservation Act (NHPA) and its implementing regulations, 36 CFR 800 [Federal Register: October 18, 2005 (Volume 70, Number 200), Notices, Pages 60523-60524].
FDIC is certainly to be congratulated on seeking to make its policy consistent with the most current versions of NHPA and 36 CFR 800.  Unfortunately, however, the policy statement does not entirely comport with the regulations, and it perpetuates some false notions about how Section 106 is to be complied with.  Notably, it suggests that applicants should rely entirely on State and Tribal Historic Preservation Officers (SHPOs, THPOs) for information on whether their proposed actions may affect historic properties, and that they seek "clearance" from, or the "consent" of, such officials in order to provide FDIC with a basis for compliance with Section 106.  In fact, the Section 106 regulations in no way provide for SHPOs and THPOs to provide "clearance" or "consent" to proposed actions, and in their current form they strongly emphasize consultation not only with such officials but with other interested parties and the general public.  Moreover, the responsibility to identify affected historic properties under the regulations resides with the Federal agency in charge of the action (in this case, FDIC).  FDIC can certainly assign the legwork of identification to applicants, but this legwork involves more than just checking with the SHPO or THPO.  These officials have neither comprehensive lists of historic properties nor crystal balls with which to visualize their existence; the process of historic property identification is a proactive one involving actual research into the historic, architectural, archaeological and cultural significance of properties. 
Admittedly, assigning such research to applicants would be burdensome to them, and perhaps to FDIC, but suggesting that applicants can merely go to SHPOs and THPOs for "clearance" is burdensome to the SHPOs and THPOs, and likely to be ineffective as well.  Overburdened state and tribal officials simply cannot be relied upon to know where all the historic places are.  Where an SHPO or THPO, in an effort to be helpful, provides an applicant with "clearance," it is quite likely to be based on very incomplete data, resulting in a high potential for damage to historic places and costly interruptions in an applicant's planning and construction schedules. 
The Section 106 regulations are not very well designed for use with programs like FDIC's, and I rather doubt that FDIC can effectively comply with Section 106 by simply attempting to interpret them through the use of a policy like the one you have published.  Some adjustment to the standard Section 106 process, via a Programmatic Agreement or other alternative means of compliance, may be in order.  Such an adjustment might exclude from review a broad range of applicant actions, similar to but more inclusive than those suggested in the second paragraph of your policy's Section B.  At the same time, it might provide a good deal more concrete guidance to applicants about how to determine whether a given action has the potential to affect historic properties and, if so, how to identify historic properties and effects.  At the very least, applicants should interact with the communities in which their projects will be located, to ascertain community concerns about places having historic, architectural, and cultural significance in their eyes, and document how those concerns are addressed.  Such local consultation could go a long way toward eliminating the need for exchanges of meaningless paperwork among applicants, SHPOs and THPOs, FDIC and the Advisory Council on Historic Preservation. 
Thank you for the opportunity to comment on your revised policy.
Thomas F. King
Silver Spring, MD

Last Updated 11/29/2005

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